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Extradition law needs reconsideration

According to an old joke among lawyers, in an extradition case there is usually only one strategic decision to make — window or aisle. This is not too far from the truth. In the spirit of international co-operation, extradition is meant to be efficient, with a meaningful consideration of guilt or innocence largely deferred to trial in the foreign state. The defence has very limited ability to prevent the client from involuntarily boarding a plane.

The recently concluded legal ordeal of Hassan Diab has exposed some troubling consequences of this streamlined process. Diab, originally from Lebanon, was a lecturer at the University of Ottawa. He had been here for many years and is a Canadian citizen. In 2008, French authorities sought his extradition because they suspected he was the mysterious person behind a 1980 bombing outside a Paris synagogue. The evidence against him was thin, at best. The most contentious item was a handwriting analysis that purportedly matched Diab’s handwriting to that of the suspected culprit on a hotel registration card. The soundness and validity of this analysis was strongly criticized by several experts retained by the defence.

After an unusually lengthy committal hearing, the extradition judge viewed the case against Diab as “weak” and considered conviction to be “unlikely.” Nonetheless, because the applicable test does not turn on the strength of the prosecution’s case, the judge concluded that he was bound by law to commit Diab for extradition. A lengthy decision from the Ontario Court of Appeal in 2014 confirmed this decision and upheld the surrender order of Rob Nicholson, then the federal minister of Justice. Diab was sent to France, where he languished in solitary confinement for three years. Last month, Diab was finally released from custody and returned to Canada, never having actually faced trial. Our extradition system appears to have enabled the prolonged and pointless detention of an innocent man.

The case is troubling not because the Canadian courts got it wrong. Rather, the decisions committing Diab for extradition seem to me to have faithfully applied Canadian extradition law. As Diab and his lawyer Don Bayne have eloquently argued, it is the extradition law itself that is need of reconsideration.

Our extradition system is premised on international comity and is designed to deliver up the person sought to the requesting state with reasonable speed and efficiency. It presumes that countries with whom Canada has signed extradition treaties can be trusted to hold a fair trial; there is accordingly no need to pre-determine the person’s guilt or innocence in Canada before sending them abroad. The Crown, acting on behalf of the requesting state, needs only to demonstrate a prima facie case, and it can do so through a summary of evidence it expects to tender at trial rather than offering up the evidence itself. Once that low bar is met, the court’s role is exhausted and it’s up to the minister of Justice to exercise her broad discretion to “surrender” the person for extradition.

Granted, the Supreme Court in Ferras has held that a court can refuse committal on the basis of evidence that is “manifestly unreliable.” But this jurisdiction has been interpreted narrowly. Soon after the Court of Appeal dismissed Diab’s appeal, the Supreme Court of Canada split sharply in the case of M.M. v. U.S.A., where a mother was sought by the state of Georgia for kidnapping her children. She claimed that she fled with her children to protect them from their abusive father. Under Canadian law, this would have provided her with a defence. Under Georgia law, it wouldn’t. A majority of the court nonetheless upheld her extradition in circumstances the dissent labelled “Kafkaesque.”

Extradition law has to grapple with a pretty difficult tension. On the one hand, it should be difficult to forcibly remove someone from their own country. After all, one of the fundamental incidents of citizenship, reflected in s. 6 of the Charter, is the right to stay put. On the other hand, Canada owes it to other civilized countries to co-operate with reasonable requests and not become a safe harbour for fugitives.

I recognize that this is a tough balance to get right. But I think Diab and Bayne are correct that the balance has swung too far in favour of facilitating extradition without regard to the quality of the evidence or the circumstances in which it was gathered. Many countries — like France, as it happens — refuse entirely to extradite their own citizens and have not become pariah states. Without adopting that posture, we can still ensure that we don’t send our citizens abroad on cases as flimsy as the one against Diab.

One way to do this would be to adopt a more robust standard at the front end: Instead of asking whether there is some evidence against the accused, we could require the court to determine whether there is evidence on which a reasonable jury could convict.

Without turning extradition hearings into full-fledged trials, we could still require the requesting state to demonstrate that they have evidence on which, in the view of an extradition judge, a trier of fact could safely enter a conviction.

Diab’s case suggests that the perils of a lower threshold are just too great.

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at mgourlay@hhllp.ca.

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